SZGQL v Minister for Immigration & Ors

[2006] FMCA 446

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGQL v MINISTER FOR IMMIGRATION & ORS [2006] FMCA 446

MIGRATION – Visa – protection (class XA) visa – Refugee Review Tribunal – application for review of a decision of the RRT affirming a decision of a delegate of the Minister not to grant a protection visa – applicant a citizen of China – Falun Gong – where Applicant did not attend the RRT hearing

PRACTICE & PROCEDURE – Notice of objection to competency – privative clause decision – where application filed more than 28 days after the applicant was notified of the decision – where decision handed down on 6 January 2004 – where application not filed until 4 July 2005 – application incompetent.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.422B,426A,474,477(1A)

Al Mehdawi v Secretary of State for the Home Department [1990] 1 AC 876 referred to
M172 v Minister for Immigration & Anor [2004] FMCA 23 referred to
SZBBL v Minister for Immigration [2004] FMCA 185 referred to
SZBSZ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 779 referred to
O’Sullivan v Repatriation Commission (2003) 74 ALD 407
Clements v Independent Indigenous Advisory Committee (2003) 131 FCR 28
Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438
Minister for Immigration & Multicultural & Indigenous Affairs v George (2004) 139 FCR 127
Taylor v Taylor (1979) 143 CLR 1
Moradian v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 81 ALD 565
S58 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 283
Minister for Immigration & Multicultural & Indigenous Affairs v Katisat [2005] FCA 1908
Ngu v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 21 followed

Applicant: SZGQL

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGNEOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

Third Respondent: YU TAN WAYNE HAN

File Number: SYG 1729 of 2005

Judgment of: Scarlett FM

Hearing dates: 4 November 2005, 27 January 2006

Date of Last Submission: 27 January 2006

Delivered at: Sydney

Delivered on: 31 March 2006

REPRESENTATION

Counsel for the Applicant: Mr Zipser

Counsel for the First Respondent: Mr Kennett

Solicitors for the  First Respondent: Phillips Fox

Solicitor for the Third Respondent: Mr Levingston

ORDERS

1. Leave granted to join the Refugee Review Tribunal as a party to the proceedings.

2. Refugee Review Tribunal is joined as Second Respondent to the application.

3. Yu Tan Wayne Han is joined as a Respondent to the application.

4. The application is not competent as the Court has no jurisdiction to hear it.

5. The Applicant is to pay the First Respondent’s costs fixed in the sum of $9,800.00.

6. The Applicant is to pay the Third Respondent’s costs fixed in the sum of $1,100.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1729 of 2005

SZGQL

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGNEOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

YA TAN WAYNE HAN

Third Respondent

REASONS FOR JUDGMENT

Application

1. This is an application for review of a decision of the Refugee Review Tribunal that was made on 5^th December 2003 and handed down on

   
   

   6^th January 2004. The Tribunal affirmed a decision by a delegate of the Minister not to grant a protection visa to the applicant.

Background

1. The applicant is a citizen of the People’s Republic of China. He arrived in Australia on 23^rd February 2003 and applied for a protection (class XA) visa on 20^th March. After his application for a visa was refused on 22^nd May 2003 he applied to the Refugee Review Tribunal on

   
   

   11^th June 2003 for a review of that decision.

2. The Tribunal wrote to the applicant on 6^th November 2003, inviting him to attend a hearing on 1^st December 2003. The applicant did not attend the hearing. Later on the day of the hearing the Tribunal received a ‘Response to Hearing Invitation’ form, saying that the applicant did not wish to attend the hearing and consenting to the Tribunal making a decision on the review without taking any further action to allow  or enable him to appear.

3. The Tribunal then exercised its power to deal with the review under

   
   

   s.426A of the Migration Act 1958. The Tribunal noted the applicant’s claim of having become an adherent to Falun Gong in 1998 and of having been interrogated and roughly treated by the police.

4. The Tribunal noted that there was nothing to support the applicant’s claims other than his unsubstantiated assertions and said:

   Because the applicant did not attend a hearing, I was unable to ascertain the level of his involvement and commitment to Falun Gong. I was unable to determine whether the applicant practises Falun Gong in Australia or whether he will do so if returned to the PRC. His claims could not be tested by the Tribunal nor his credibility established. Accordingly, the Tribunal is not satisfied that the applicant is a Falun Gong practitioner.[1]

   [1] Court Book page 65.

5. The Tribunal was unable to be satisfied from the evidence that the applicant faced a real chance of persecution should he return to the People’s Republic of China at that time or in the foreseeable future. The Tribunal affirmed the decision of the delegate not to grant a protection visa.

Application for review

1. The applicant filed an application for review on 4^th July 2005, after he had been taken into Immigration detention. His application said, rather melodramatically:

   I am an innocent victim of the agent, Mr Han.

2. The applicant was referring to the third respondent, who was his migration agent.

3. The applicant filed an affidavit on 30^th September 2005 in which he deposed that he had paid the third respondent to act for him in his quest to obtain a visa. He deposed that:

   a)the third respondent told him of the Tribunal hearing but said that there was no need for him to attend;

   b)if the third respondent had told him that it was important for him to attend the Tribunal he would have done so and explained how he was a Falun Gong practitioner in China and continued to practise in Sydney; and

   c)up until June 2005 he believed that his refugee application was still being processed because the third respondent never told him about the Tribunal decision.

4. The applicant was cross-examined on his affidavit by counsel for the first respondent and the solicitor for the third respondent. The applicant admitted that he signed a statement written in English without understanding what it contained. He said that he had a conversation in Mandarin with the third respondent when his application was being prepared. He denied that the third respondent translated the document into Mandarin for him. He said that he trusted the third respondent because he spoke good Mandarin and was from North China.

5. The applicant said that when he was arrested and taken into Immigration detention he did not telephone the third respondent, because he thought up until then that he had a permit to stay and work in Australia. He said that he did not know that his application for refugee status had been refused until he was taken into Immigration detention. He denied that he knew that the third respondent had made an application for Ministerial intervention under s.417 of the Migration Act on his behalf. An application for a Bridging E visa and a typed application to the Minister dated 23^rd January 2004 and signed by the applicant were admitted into evidence.

6. In cross-examination by counsel for the Minister, Mr Kennett, the applicant admitted that he understood that an examination of his case by the Refugee Review Tribunal was part of the process but denied that he knew that there was a to be a hearing which he should have attended. He said that he trusted the third respondent and felt embarrassed about wasting his time by asking questions about his case.

7. The applicant called a witness to give evidence on his behalf. As that person has applied in the past for a protection visa, I do not intend to identify him, in order to comply with s.91X of the Migration Act.

   
   

   He will be referred to as G.

8. In an affidavit filed in court on 27^th January 2006, G deposed that he had used the services of the third respondent to apply for a protection visa. When that visa was refused, he sought a review by the Refugee Review Tribunal. He deposed that at some time the third respondent telephoned him and said words to the following effect:

   “There is a hearing for your matter in the Refugee Review Tribunal. However, you do not need to attend the hearing.

   
   

   You cannot win your case. Also, if you attend the hearing, you might be arrested by the Department.”

9. The deponent did not attend the hearing, relying on the advice of the third respondent. He said that he would have attended if the third respondent had told him it was important to do so.

10. The witness was not cross-examined.

11. The third respondent did not give evidence.

Submissions

1. Counsel for the applicant, Mr Zipser, submitted that there are three issues in this case:

   a)The applicant was misled by his migration agent and, as a result, was deprived of the opportunity of attending a hearing before the Refugee Review Tribunal. The question is whether these circumstances give rise to jurisdictional error.

   b)Whether s.422B of the Migration Act has any effect on whether there was jurisdictional error.

   c)Whether the applicant’s delay of more than a year in lodging his application for judicial review should led to a refusal of relief on discretionary grounds.

2. He referred to the English decision of Al Mehdawi v Secretary of State for the Home Department [1990] 1 AC 876 where Lord Bridge stated this principle at 898:

   “These considerations lead me to the conclusion that a party to a dispute who has lost the opportunity to have his case heard through the default of his own advisers to whom he has entrusted the conduct of the dispute on his own behalf cannot complain that he has been the victim of a procedural impropriety or that natural justice has been denied to him…”

3. In M172 v Minister for Immigration & Anor [2004] FMCA 23 Bryant CFM (as she then was) dealt with a case where the applicants claimed that their migration agent was not authorised to tell the Tribunal that he would not be attending the hearing. The first applicant contended that he was denied natural justice in that he was not able to give an account to the Tribunal of the persecution he suffered at the hands of corrupt government officials in his home country. It was not contended that there was any omission or failure to comply with the Act on the part of the Tribunal but that the breach of natural justice arose from the information given to the Tribunal by the applicants’ migration agent.

4. Counsel for the applicant pointed out that although the Chief Federal Magistrate referred to the decision in Al-Mehdawi (supra) she did not need to decide whether the principle in Al-Mehdawi applied, because the applicant had not presented any evidence that he was in fact misled by his migration agent.

5. Counsel for the applicant also referred to the decision of Driver FM in SZBBL v Minister for Immigration [2004] FMCA 185, where his Honour referred at [13] to the decision of Bryant CFM in M172 (supra):

   The issue of whether proceedings in a migration tribunal are rendered procedurally unfair by reason of some fault on the part of a migration agent which prevents an applicant enjoying the full benefit of a hearing before the tribunal was considered by the Chief Federal Magistrate in the case of M172 v Minister for Immigration & Anor. The Chief Federal Magistrate considered the authorities comprehensively and concluded firmly that default on the part of a migration agent could not support a claim of jurisdictional error on the part of a review tribunal. In my view, that issue has now clearly and conclusively been dealt with.

6. Counsel for the applicant submits that this statement in SZBBL v Minister for Immigration (supra) is incorrect because the Chief Federal Magistrate:

   a)did not consider the relevant authorities comprehensively; and

   b)did not conclude firmly that default on the part of a migration agent could not support a claim of jurisdictional error on the part of a review tribunal.

7. I am also referred to the decision of Bennett J in SZBSZ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 779 which was an appeal from a decision of Driver FM, where her Honour considered the same issue. It is submitted that her Honour did not expressly decide that the principle in Al Mehdawi applies in Australia, as she expressly noted that the applicant in the case before her had not led any evidence to support his assertion of having been misled by his migration agent.

8. Counsel for the applicant takes issue with the statement that all Australian authorities require some defect in the decision-making process before relief can be granted, citing O’Sullivan v Repatriation Commission (2003) 74 ALD 407 at [42]-[59], Clements v Independent Indigenous Advisory Committee (2003) 131 FCR 28 at [33],

   
   Hot Holdings Pty Ltd v Creasy

   (2002) 210 CLR 438 at [22], and Minister for Immigration & Multicultural & Indigenous Affairs v George (2004) 139 FCR 127. He also referred to the decision in

   
   Taylor v Taylor

   (1979) 143 CLR 1, where the appellant, through the neglect of his solicitors, lost the opportunity to attend a hearing before an order was made against him.

9. In considering the effect of s.422B of the Migration Act, the applicant relies on the decision in Moradian v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 81 ALD 565.

Conclusions

1. The third respondent elected not to lead any evidence in reply to the applicant’s claims. As a result, the only evidence before the court is the applicant’s account of the circumstances. He claims that the third respondent advised him not to attend the Refugee Review Tribunal, so he did not go. Had he been told that his attendance was necessary or useful, he said that he would have gone to the hearing.

2. The applicant’s evidence was not seriously shaken in

   
   

   cross-examination. Consequently, I accept that he received this advice and acted upon it.

3. The applicant’s witness, G, gave similar evidence and was not

   
   

   cross-examined. That is not sufficient to establish that it was the practice of the third respondent to advise all of his clients in that way.

4. In any event, it appears to me that the Tribunal was in no way aware that the applicant had been in any way misled by the third respondent. The Tribunal received a Response to Hearing Invitation on

   
   

   1^st December 2003 advising that the applicant did not want to come to the hearing. There was nothing in the circumstances that would have alerted the Tribunal that there was anything untoward. The applicant was represented by a registered Migration agent and there is no evidence that the Tribunal was aware of any suspicious circumstances about the migration agent.

5. In my view, the applicant followed the advice of his migration agent and can not now complain that the Tribunal fell into error as a result. As counsel for the respondent Minister submits, the Full Federal Court said in S58 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 283 at [26]:

   In our view the appellant was offered the opportunity to appear before the Tribunal and address any concerns it may have had about his claims and to put forward the documents upon which he relied. He cannot complain if his application was rejected because, amongst other reasons, he failed to take up that opportunity.

6. It must follow that, in the event of some exceptional circumstance such as fraud, of which there is no evidence in this case, that there will be no jurisdictional error where there is no defect in the Tribunal’s decision-making process. In my view, the approach taken by Bryant CFM in M172 is to be preferred. I consider that the approach in Al Mehdawi is persuasive and should normally be followed.

7. As to the effect of s.422B, I am not confident that the approach taken by Gray J in Moradian is the preferred view any more (see Minister for Immigration & Multicultural & Indigenous Affairs v Katisat [2005] FCA 1908).

8. I am not satisfied that any jurisdictional error on the part of the Tribunal has been made out. Counsel for the Minister has drawn my attention to the decision of the Full Court of the Federal Court in

   
   Ngu v Minister for Immigration & Multicultural & Indigenous Affairs

   [2004] FCAFC 21, where the Full Court upheld the judgment of Nicholson J at first instance that an application for review of a privative clause decision filed outside the mandatory time limit in

   
   

   s.477 of the Migration Act is incompetent if a ground of review cannot be made out.

9. In this case, the Tribunal decision was handed down on

   
   

   6^th January 2004. The applicant did not file his application for judicial review until 4^th July 2005. The application is clearly out of time and I uphold the Notice of Objection to Competency. The application is not competent.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  S.Polley

Date:  31 March 2006